US lawyer's email not creative enough for copyright protection

Judge Dolly Gee says man sought lawsuit in bad faith

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A lawyer's email was not creative enough to be protected by copyright laws, a US court has ruled.

The critical email had been forwarded outside of an email group without the consent of author Kenneth Stern, who then sued the person who forwarded the message for breach of copyright.

Stern's email lacked originality and a copyright certificate he had obtained from the US Copyright Office was invalid as a consequence, Judge Dolly Gee said (30-page/177KB PDF).

Stern posted a 23-word message to 2,300 fellow members of the Consumer Attorney's Association of Los Angeles (CAALA) relating to an accountancy firm and made an allegation of over-charging.

"Has anyone had a problem with White, Zuckerman ... CPAs including their economic employee Venita McMorris over billing or trying to churn the file?" Stern's email read.

Robert Weinstein, who was also a member of CAALA, forwarded the post onto his sister Sara Weinstein who was a client of White, Zuckerman, who in turn sent the message on to the company.

Stern sued Robert and Sara Weinstein for breach of copyright, and obtained a copyright certificate of registration for his email in 2009 after White, Zuckerman had threatened to sue him for libel. The Weinsteins challenged that Stern's email was not copyrightable and asked the court for a judgment before it went to full trial.

Judge Gee agreed with the Weinsteins that Stern's email was not copyrightable and said that in any case the reproduction of Stern's email was legitimate as it was in order to represent what Stern had written and not because it was a creative expression.

"[Stern's] listserv post ... displays no creativity whatsoever – its content is dictated solely by functional considerations. As [Stern's] expression of his idea is indistinguishable from the idea itself, it is not entitled to copyright protection," Judge Dolly Gee said.

Listserv is an email management tool that allows you to send a single email to a large number of recipients.

Stern argued that he had considered alternatives to the email's wording, but the judge said that "trivial" alternatives did not show that the finished email merited copyright protection.

Robert Weinstein breached a confidentiality agreement he signed with CAALA, Stern argued. All members of the listserv group had signed a licence agreement with the law association when they joined and forwarding an email outside of the group constituted a violation of that agreement, Stern said.

Stern was not the main beneficiary of Weinstein's agreement with CAALA so, under California contract law, could not show Weinstein had breached confidentiality by forwarding his email, the judge ruled.

The judge also accepted that CAALA's disclaimer waived their responsibility for breach of confidentiality.

Stern said that the violation of his copyright had caused him to suffer from insomnia and emotional distress and that he had aggravated arthritis in his hip. "Their dubiousness aside, none of these claims are compensable under the Copyright Act," the judge said.

The judge said that Stern had sought litigation in bad faith but asked for more details of the fees incurred by the Weinsteins before settling on the figure for which Stern will be liable.